Deciding to separate, whether through Divorce or ending a common-law relationship, can be stressful, emotional, and difficult. A Separation Agreement is an essential tool to ensure both parties’ rights are represented and to provide peace of mind while guiding the relationship into the future.
First things first, a quick warning: there are many online templates for Separation Agreements. These standard documents typically come at less cost but with significant risk. This is a document that will affect your life, your children, and your home, and it should therefore be carefully drafted to fit your unique situation. These online templates may cover the basics but they miss key components and, if they are not executed properly, are not legally enforceable.
We are more than happy to offer a review of a Separation Agreement you have prepared yourself (or through such online templates) and provide additional advice. This is a common route for parties that are in agreement about their separation, and are working together to have a Separation Agreement drafted between them. As we said above, however, there is a good chance the Agreement will not cover everything, and additional work may need to be done.
What is a Separation Agreement?
It’s an agreement between two parties that outlines the terms of your divorce or separation. It will determine agreements between the parties on issues such as: child support, child custody and access, spousal support, living arrangements, property division, and monetary division.
Child support is typically determined by the Child Support Guidelines. These guidelines will set out the monthly amount to be paid, and how extraordinary expenses will be shared.
Child Custody and Parenting Arrangement
There are many aspects to parenting that a person doesn’t think of immediately. We can help you by going through each aspect and making sure your Agreement reflects what is best for the parties, and most importantly, what is best for the children.
Here are some examples of potential issues that should be covered:
How will the parents split parenting time and responsibilities?
What contact will children have with other people in the family?
How will vacations and holiday time (Christmas, Easter, Thanksgiving) be divided between the parties?
How will the parents communicate with each other?
Does one parent need to travel to see the children? Or does one parent have a job with unusual hours that need to be accounted for? (such as shift work or work that involves travel)
How moving with children will be handled?
Spousal support can be determined by your lawyer based on your circumstances. The Spousal Support Advisory Guidelines act as a starting point. Other considerations include: how long will support be paid, how will recalculations be determined, and the tax implications of receiving support (determined as taxable income to the receipt).
The first question for the division of property is: who should stay in the family home? It’s completely situation-dependent (in some cases, one spouse will buy another out. In others, neither spouse can afford the property alone, so it will be sold and the proceeds split) and your Separation Agreement will set out how it is handled.
Other assets that will need to be determined are physical assets and financial assets.
Some examples of physical assets are: furniture and appliances, vehicles (including recreational vehicles such as quads, snowmobiles, boats, etc), other real estate, business assets, and pets.
Some examples of financial assets are: Canada Pension Plan (CPP), life insurance policies, investments, and bank accounts.
When to create a Separation Agreement?
As soon as possible after deciding to separate. The most important aspect of a Separation Agreement is setting out how things will work between the parties. The sooner these guidelines can be established, the better.
It’s also important to create a Separation Agreement so that you can get started with property division. There are important timelines in Alberta on when you can make a claim after Separation – if you wait too long, you run a risk of losing your rights to your share of the property.
Independent Legal Advice
The most common pitfall for parties creating their own Separation Agreements is not obtaining Independent Legal Advice. It is a requirement under Alberta law that each party attend an independent lawyer (meaning, a lawyer with no relationship to the other party) to review the document and sign an “Independent Legal Advice Certificate” for your Separation Agreement. While it can feel like a pain to go through this process, it is a requirement for your agreement to be legally enforceable.
Fletcher Law is happy to provide a cost-effective, flat-fee price for the review of a Separation Agreement and to provide Independent Legal Advice.
Where Fletcher Law can help
As you can see, there are many aspects to a separation that will need to be considered when drafting your agreement. Please call or email Attila Nadori at Fletcher Law today to book a free consultation to discuss your unique situation. With that information, we will be able to provide you with advice and guidance in the process. Attila can be reached at: firstname.lastname@example.org or 403-452-4060 ext 224.